Rule of Non-inquiry

Argument Under the Real id Act and the Rule of Non-inquiry, Trinidad's Challenge to the Determination by the Secretary of State to Surrender Him For Extradition to the Philippines is Not Justiciable in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): Under these circumstances, the Supreme Court instructed that, while “the Judiciary is not suited to second-guess such determinations, * * * the political branches are well situated to consider sensitive foreign policy issues, such as whether there is a serious prospect of torture at the hands of an ally, and what to do about it if there is.” 553 U.S. at 702. The Court recognized that the political branches possess significant diplomatic tools and leverage the judiciary lacks.” Ibid.

More about Argument Under the Real id Act and the Rule of Non-inquiry, Trinidad's Challenge to the Determination by the Secretary of State to Surrender Him For Extradition to the Philippines is Not Justiciable

Munaf establishes that the principles animating the Rule of Non-Inquiry govern fully in a case like this one in which Trinidad asks the courts to review an extradition surrender determination by the Secretaryof State that rejected allegations of likely torture in a receiving state.…

Just as in Munaf, judicial review of the Secretary's extradition surrender determinations would place this Court in an obviously inappropriate position. For example, suppose the Secretary had determined in a particular case that, despite a history of human rights abuses in that country, a fugitive would not be tortured. On that basis, and with appropriate provision for monitoring, she then concludes, consistent with the FARR Act and the Torture Convention, that it is not more likely than not that the fugitive would be tortured. A court could evaluate that decision only by second-guessing the expert opinion of the Department of State. It is difficult to contemplate how judges would reliably make such a prediction, lacking any ability to communicate with the foreign government or to weigh the situation there, including the bilateral relationship with the United States, with resources and expertise comparable to those of the Department of State. See Munaf, 553 U.S. at 70-03.

Developments

Only the Secretary of State has the diplomatic tools at her disposal to best protect a fugitive or ensure humane treatment upon his extradition. See Munaf, 553 U.S. at 702-03; Kin-Hong, 110 F.3d at 110. The Secretary may decide to attach conditions to the surrender of the fugitive, such as a demand that the requesting country provide assurances regarding the individual's treatment. See Munaf, 1553 U.S. at 702 (noting Solicitor General's explanation that determinations regarding torture are based on the Executive's ability to obtain foreign assurances it considers reliable); Jimenez v. United States District Court, 84 S. Ct. 14, 19 (1963) (describing commitments made by foreign government to Department of State as a condition of surrender) (Goldberg, J., in chambers). But even the decision to demand such assurances from a foreign state can raise delicate foreign relations issues.

Application of the Rule of Non-Inquiry here makes sense in light of the factors involved in extradition surrender determinations, the inherent limits on the ability of courts to adjudicate issues intimately tied to foreign relations, and the fact that the Department of State has put into place appropriate policies and procedures for determining whether a fugitive is more likely than not to be tortured.

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The Secretary of State already has the responsibility to ensure that extraditions are legally carried out. In other words, “[i]t is not that questions about what awaits the relator in the requesting country are irrelevant to extradition; it is that there is another branch of government, which has both final say and greater discretion in these proceedings, to whom these questions are more properly addressed.” Kin-Hong, 110 F.3d at 111; see Munaf, 553 U.S. at 702. Trinidad's argument wrongly assumes that the Secretary will seek to extradite someone to face torture, but the courts have long recognized the presumption that the decisions of government officials are made in good faith. United States v. Chemical Found., 272 U.S. 1, 14-15 (1926); see also Jennings v. Mansfield, 509 F.3d 1362, 1367 (Fed. Cir. 2007). In the present case, the procedures established by the Secretary render such a presumption particularly appropriate.

In sum, in Lopez-Smith, this Court reaffirmed the Rule of Non-Inquiry, and refused to grant a habeas writ to stop an extradition despite the petitioner's contention that the legal procedures and punishment he faced in Mexico after extradition were “antipathetic” to the Court's “sense of decency.” 121 F.3d at 1326. The Court here should again reaffirm the Rule of Non-Inquiry and reverse the grant of the habeas writ no those grounds.

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C. Neither the Torture Convention Nor the FARR Act Overturned the Rule of Non-Inquiry so as to Provide for Judicial Review of the Secretary's Surrender Determinations.

The Cornejo I panel majority cited the holding from Lopez-Smith to the effect that no judicial review of the Secretary of State's extradition surrender order is available. See 218 F.3d at 1010. Nevertheless, the panel opined that the FARR Act made the Secretary's extradition surrender decisions justiciable because that statute placed a nondiscretionary duty on the Secretary not to extradite fugitives if she finds it is more likely than not that they will be tortured. Cornejo I, 218 F.3d at 1014. In fact, no such justiciability rule can be based on the FARR Act.

1. Trinidad has contended that Article 3 of the Torture Act prohibits the extradition of a person who more likely than not will be tortured, and that the FARR Act creates a duty on the part of the Secretary of State to implement that prohibition. While these contentions are correct, neither of those instruments makes justiciable the Secretary's surrender determination which is exclusively within the province of the Secretary of State. The text of the FARR Act contradicts any notion that Congress intended to radically alter the law and abruptly create judicial review of extradition surrender determinations by the Secretary of State. To the contrary, as described earlier, the FARR Act states that “[n]otwithstanding any other provision of law * * * nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the [Torture Convention] or this section * * * except as part of the review of a final order of removal [in immigration cases].” 8 U.S.C. 1231 note, Sec. 2242(d).

This clear statutory text establishes that Congress did not override the Rule of Non-Inquiry and surreptitiously through the FARR Act make extradition surrender decisions justiciable. See also H.R. Conf. Rep. No.105-432, at 150 (1998) (“The provision agreed to by the conferees does not permit for judicial review of the regulations or of most claims under the Convention”). Rather, the FARR Act provided for jurisdiction over claims under the Torture Convention only in review of final immigration removal orders. See Al-Anazi v. Bush, 370 F. Supp. 2d 188, 194 (D.D.C. 2005). No such removal order is at issue here.

In view of the clear statutory wording of the FARR Act, the dictum in Cornejo I that this language only “prohibits courts from reading an implied cause of action into the statute” (218 F.3d at 1015) is mistaken. The FARR Act language manifestly provides that the statute creates no jurisdiction for judicial review of an extradition surrender determination by the Secretary of State.

In addition, the regulations promulgated by the Department of State under the express authority of the FARR Act firmly support the proposition that nothing in that statute established a new right to judicial review of extradition surrender determinations. On their face, the regulations indicate that there is no judicial review of the Secretary's extradition surrender decisions. See 22 C.F.R. 95.4 (“[N]otwithstanding any other provision of law * * * nothing in section 2242 shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or section 2242, or any other determination made with respect to the application of the policy set forth in section 2242(a), except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (8 U.S.C. 1252), which is not applicable to extradition proceedings”).

Especially in light of Congress's explicit delegation to the Secretary of State the authority to “implement” the obligations of the United States under the Torture Convention, these State Department regulations deserve substantial deference as published agency interpretations of the FARR Act. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984) (where there has been a Congressional delegation of administrative authority, courts must defer to reasonable agency interpretation).

The language of the FARR Act and the State Department implementing regulations demonstrate that the FARR Act did not suddenly and silently make justiciable the extradition surrender determinations by the Secretary, contrary to the longstanding Rule of Non-Inquiry.

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See Also

• International Criminal Law
• Extradition
• Mutual Legal Assistance
• Trinidad